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TMI Blog2002 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... aid d factor is 254 mm. 2. As per the facts on record, the appellants, after introduction of the scheme for levy of duty on the basis of capacity of production in respect of notified goods with effect from 1-9-97, wrote to the Commissioner and filed a declaration on 20-10-97 declaring the d factor to be 254 mm. Subsequently, they also sought a confirmation from the manufacturer of the pinion stand, who in his Certificate dated 1-11-97 certified that the pinion stand supplied to the appellant is of 254 mm centre of the finishing stand. The said certificate was also filed in the Department. Thereafter, on 4-12-97, the appellants factory was visited by the Central Excise Officers with an Officer of Rourkela Steel Plant. They prepared a report about the said d factor and certified the same to be 275 mm. The said report was signed by the appellants Director. On 27-2-98, the appellants wrote a letter to the Commissioner objecting to the d factor being taken as 275 mm. Thereafter, the appellants factory was visited on 27-8-98 and an identical report was prepared showing d factor as 275 mm. The appellants challenged the said d factor adopting by the Revenue by way of filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer s documents and as to why and how the alleged variation was noticed. (d) Fourthly, in the purported report dated 4-12-97 a reference was also made to the Verification Report of the Assistant Commissioner. The said purported Verification Report of the Assistant Commissioner has neither been supplied to the Appellant nor has been referred to or annexed to the impugned order. (e) Fifthly, in the purported Verification Report dated 27-8-98, it has been alleged that the distance of both the upper two and the lower two pinions were taken and found to be 275 mm as per the guidelines prescribed in Point No. 3 of Instruction No. 8/GL-5/98 dated 13-3-98 . The Pinion Stand at the Appellant s Rolling Mill has got only three pinions and there could be no question of two upper pinions and two lower pinions as alleged in the said purported report. This itself would show that the said reports were prepared mechanically and on a complete non-application of mind. Furthermore nothing is known or disclosed as to what were the guidelines in the purported departmental instruction dated 13-3-98 and as to how the same were followed. (f) The format of declaration unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to the petitioner to cross-examine Shri Gopalakrishnan in spite of his request, is an act of violation of the principles of natural justice. No finding, therefore, can be based on the hearsay opinion evidence of a person whose credibility as an expert has not been duly established. " (v) 1999 (114) E.L.T. 1006 (Modipon Limited v. CCE). 5. He further submits that their request to cross examine the visiting officers as also the so-called expert has not been acceded to by the Commissioner even though they had made a written request to the said effect. He submits that the credibility normally could be brought on record only after examination of the visiting team of the officers and the denial of the same has resulted in violation of principle of natural justice. It is also the appellants contention that the pinion is lying hidden inside the closed oil bath chamber and it is not visible from outside. As such, it is not clear that how the same was measured by the visiting officers. There is also nothing disclosed in the report about the correct method adopted by the officers for measuring such factors which could be solved only by cross examination. By referring to num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) of Regional Engineering College, Rourkela. (iv) Sri B.T. Shivaswami, BE, MIE, PGIM and Chief Executive of M/s. Rana Udyog Pvt. Ltd., the manufacturer and supplier of the said pinion stand to the appellant. In view of the foregoing, Shri Bagaria submits that the impugned order be set aside and the appeal may be allowed. 7. Shri T.K. Kar, ld. SDR, appearing for the Revenue submits that the departmental officers have visited the appellants factory on two occasions for the purpose of measuring the d factor and on both the occasions, they have found the same as 275 mm. As such, the Commissioner has rightly rejected the other evidences produced by the appellants and adopted the report of the officers. He also submits that Central Excise Officers were accompanied by an expert officer of Rourkela Steel Plant and as such it cannot be said that the report of the visiting officer is not correct. As regards the cross examination, he submits that the Commissioner has observed in the impugned order that no such request was reiterated at the time of personal hearing. 8. We have considered the submissions made by both the sides. We have to weigh the evidentiary value of the reports ..... X X X X Extracts X X X X X X X X Extracts X X X X
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